Walker v. Turnipseed , 8 Ala. 679 ( 1845 )

ORMOND, J.

The notice in this case informs the sheriff, that a motion will be made against'him for failing to pay over on demand, the amonnt of an execution which is particularly described, which issued on a judgment for $ 106 55. After a demurrer to the notice, the parties went to trial upon an issue before a jury, when the sheriff moved to exclude the execution, for a variance between it, and the fi. fa. described in the notice, the execution, when produced, being for $ 100 65. The plaintiff to explain it, produced the original^, fa., which was for the correct amount, the money having been collected on an alias fi. fa., and offered both in evidence. The Court refused to exclude the alias from the jury, and permitted the original to go to the jury, as explanatory of it, and to show the true amount of the judgment. This; according to the decision in Johnson v. Gray, 6 Ala. Rep. 276, was erroneous, where it was 'held, that the question before the jury in such cases, is not only whether the money was collected, but whether it was collected by virtue of the particular execution described in the notice ; and that a misdescription of the execution, is a fatal defect. .That decision applies fully to this case.

We think however, that where, as in this case, the notice is pleaded to, it is in lieu of a declaration, and may be amended; but no such motion was submitted to the Court.

As the cause must be reversed for this error, we decline a further examination of the assignments of error, as they may not again arise.

Let the judgment be reversed and the cause remanded.